12.  The applicant was born in 1974 and is currently detained in Broadmoor High Security Psychiatric Hospital.
13.  The applicant has been indicted in the United States of America as a co-conspirator in respect of a conspiracy to establish a jihad training camp in Bly, Oregon.
14.  On 7 August 2005 the applicant was arrested in the United Kingdom on the basis of an arrest warrant issued under section 73 of the Extradition Act 2003 following a request for his provisional arrest by the United States.
15.  The Senior District Judge gave his decision in the applicant’s case on 5 January 2006. He concluded that none of the bars to extradition applied and sent the case to the Secretary of State for his decision as to whether the applicant should be extradited.
16.  On 1 March 2006 the Secretary of State ordered his extradition. The applicant appealed to the High Court on the ground that his extradition would not be compatible with Article 3 of the Convention because he could be detained in a maximum security facility such as ADX Florence and subject to special administrative measures, including solitary confinement.
17.  The applicant’s appeal was heard together with that of Mr Babar Ahmad. In its judgment of 30 November 2006 the High Court rejected the appeals. The High Court found that, according to the case-law of this Court, solitary confinement did not in itself constitute inhuman or degrading treatment. Applying that approach, the evidence before it – which included an affidavit from a United States’ Department of Justice official outlining the operation of special administrative measures – did not “begin to establish a concrete case under Article 3”.
18.  The applicant and Mr Babar Ahmad applied for permission to appeal to the House of Lords. This was refused by the House of Lords on 6 June 2007.
19.  On 27 March 2008 the applicant was transferred to Broadmoor Hospital from HMP Long Lartin because he met the criteria for detention under the United Kingdom’s mental health legislation.
20.  On 11 November 2011 the First-Tier Tribunal (Health, Education and Social Care Chamber) Mental Health considered the applicant’s case and concluded, having considered the evidence from the applicant’s clinical care team, that he was suffering from paranoid schizophrenia which made it appropriate for him to continue to be liable to detention in a medical hospital for his own health and safety.
21.  In his statement to the Tribunal, Dr A. Payne, a Consultant Forensic Psychiatrist, indicated that:
“[The applicant’s] insight into his illness is limited and if returned to prison he would be exposed to significant stress given the conditions of his detention, the uncertainty of his case and his potential extradition and lengthy incarceration in conditions of solitary confinement. His compliance with medication would be uncertain, particularly in the medium to long term. These factors would be likely to lead to a relapse with deterioration in his mental health and the risk of a consequent deterioration in his physical health due to poor fluid and food intake. I am therefore of the opinion that his mental disorder is of a nature that requires his detention in hospital for medical treatment and that such treatment is necessary for his own health and safety. I do not believe that there is sufficient evidence available to justify his detention on the grounds of his risk to others.”
22.  Dr Claire Dillon, a Consultant Forensic Psychiatrist, indicated in a report dated 12 April 2012, that:
“Mr Aswat suffers from an enduring mental disorder, namely paranoid schizophrenia, which has been characterised by auditory hallucinations, thought disorder, delusions of reference, grandeur and guarded and suspicious behaviour. Mr Aswat’s condition is currently well controlled on amilsulpride (anti-psychotic medication). However, he has only partial insight into his illness and he would be likely to relapse if he ceased taking his medication.
Mr Aswat has undertaken psychological work to enhance his understanding of his mental illness and he is able to recognise the need for professional support to manage this. In view of the lack of convictions for violent offences, Mr Aswat has not undertaken any offence-related work whilst at Broadmoor, as the decision of the European Court of Human Rights was awaited. Mr Aswat engages in occupational and vocational activities within the hospital and these, along with his attendance at the Mosque, have helped to prevent any significant deterioration in his mood.”
23.  On 8 May 2012 the United States’ Department of Justice indicated that upon his arrival in the United States, the applicant would have a full opportunity to argue that he lacked mental capacity to stand trial there. If he did so, the trial judge would have to assess his competency before the trial could proceed. In doing so, he would rely on the reports of medical professionals and on the applicant’s full medical records, including – presumably – those relating to his transfer to Broadmoor.
24.  A competency evaluation could be appealed to the United States’ Court of Appeals for the Second Circuit. The Second Circuit would need to affirm the district court’s competency determination before the trial could proceed.
25.  Prior to and pending trial the applicant would not be housed in ADX Florence as this institution did not house inmates who were unsentenced and pending trial.
26.  If the applicant were to stand trial and be convicted of an offence, then following sentencing the Federal Bureau of Prisons would be responsible for deciding which institution he should be housed in. Medical, psychological and psychiatric concerns would be considered by the designation team before a determination of housing could be made. If a hearing was warranted, it would be open to the applicant to present evidence and make oral statements as to why he should not be designated to ADX Florence in light of his mental health.
27.  With regard to the system and standard of mental health care available within the institutions, the Department of Justice indicated that:
“Mental health services range from inpatient psychiatric treatment, to residential treatment programs, to outpatient psychological and psychiatric services. As in the community, the vast majority of mental health care in the Bureau is provided on an outpatient basis at the local institution level by the Psychology Services Department working in collaboration with either a full-time or consultant psychiatrist.
Mental health services in the Bureau are delivered by psychiatrists and doctoral‑level psychologists. This hiring standard ensures mental health providers in the Bureau have a minimum of four years of graduate level, supervised training in the treatment of mental illnesses.
... ... ...
All Bureau facilities are equipped to manage mentally ill inmates, including those with schizophrenia, as each institution employs doctoral-level psychologists and has access to psychiatric services. Many inmates with mental illnesses, including schizophrenia, are managed successfully in mainline institutions through the treatments of choice which include medication, clinical case management, and cognitive-behavioural interventions. While a diagnosis of schizophrenia would not preclude a designation to a maximum security facility, most inmates with this diagnosis are managed and treated in other facilities. Conditions of confinement are largely determined by security needs and would be modified based on mental illness only if the inmate’s mental status warranted such a change (e.g., if his mental status deteriorated).
The Bureau provides a structured living environment for inmates with significant staff oversight. This environment allows for prompt identification of mental health concerns, provides immediate access to mental health professionals, and facilitates compliance with mental health treatment. All inmates confined in the Bureau are evaluated by Health Services’ staff within 24 hours of arrival. At that time, their medication regimens are reviewed and continued, as appropriate. Thus, any mental health medications the inmate may be taking would be noted and continued as appropriate, upon admission. Additionally, an inmate’s mental health status is evaluated to determine whether there is any imminent risk of self-harm or suicide and whether he or she is stable and appropriate for placement in the designated setting. If Health Services’ staff has any concerns at the time of admission, a doctoral level psychologist will be called to consult.
In all cases, regardless of the outcome of the initial evaluation performed by Health Services’ staff, all new designees are seen within 14 days for evaluation by a doctoral level psychologist. This evaluation focuses on collecting a mental health history, as well as identifying any current symptoms and determining treatment needs. All inmates are classified based on their mental health treatment needs to ensure appropriate placement, treatment, and follow-up services to be provided.
Psychologists are a visible presence in the institution – in the cafeteria, on the compound, and in the housing units. In addition, a psychologist is on-call 24 hours a day, 7 days a week, with a prompt response to the institution in the event of a mental health crisis. All inmates have direct access to psychological services from doctoral level psychologists. Ordinarily, these services include: crisis intervention, ongoing clinical case management of mental illnesses, brief counselling focused on a specific issue or problem, individual psychotherapy, and psycho-educational and/or therapeutic groups. Inmates may access these services through self-referral or may be referred by institution staff. In addition, all inmates who need psychotropic medication are seen regularly by a psychiatrist.
On occasion, despite best efforts to work with mentally ill inmates at the local institution level, more intensive mental health services are required. In these cases, an acutely mentally ill inmate is typically referred to one of the Bureau’s Psychiatric Referral Centres for acute psychiatric care. Under Bureau policy, acute psychiatric care is defined as care, including but not limited to, crisis intervention for inmates who are persistently suicidal, homicidal, or unable to function in the institution without creating a dangerous situation due to their mental illness. These inpatient services are generally brief, with the goal of returning the inmate to a level of functioning that would allow him or her to return to the designated institution.
Alternatively, seriously, but not acutely, mentally ill inmates may be placed in one of the Bureau’s residential mental health treatment programs, which provide long‑term, intensive mental health care. The Bureau is committed to providing high‑quality, evidence-based residential treatment programs to all inmates in need of these services. The BOP’s Psychology Treatment Programs (PTPs) are designed using the most recent research- and evidence-based practices. These practices lead to a reduction in inmate misconduct, mental illness and behavioural disorders; substance abuse, relapse, and recidivism; and criminal activity. These practices also lead to an increase in the level of the inmate’s stake in societal norms and in standardized community transition treatment programs. Transition treatment increases the likelihood of treatment success and increases the public’s health and safety. Inmates are referred to these programs based on need and appropriateness of the program to the inmate’s security level.
Decisions concerning the appropriateness of transfer to a Psychiatric Referral Centre are based on the best judgment of the treating clinicians (i.e., psychologist, staff psychiatrist, or consulting psychiatrist) and are typically dependent upon such factors as the severity of the mental illness, the specific characteristics and resources of the institution, and relevant patient variables. Inmates who are disruptive to the orderly running of the institution, but who are not mentally ill, are not generally appropriate referrals to a Psychiatric Referral Centre.
In the case of schizophrenia, the treatment of choice is medication, clinical case management, and cognitive behavioural interventions, with inpatient admissions only as necessary to manage brief psychiatric emergencies, should they arise. The Bureau attempts to manage and treat the mental illnesses of all offenders in the least restrictive environment appropriate to their mental health and security needs. Therefore, an inmate’s security level would only be adjusted due to schizophrenia should behavioural issues or a psychiatric emergency warrant such an adjustment. The Bureau currently incarcerates many inmates diagnosed with schizophrenia, the majority of whom is managed and treated successfully in general population settings.”
28.  The Department of Justice further indicated that if the applicant were to be detained in ADX Florence, his detention would be subject to three types of review: classification, program review, and a progress report. The Department described these reviews as follows:
“Classification and Program Review refer to the procedure whereby an inmate’s case is formally reviewed by the Unit Team. These meetings are generally referred to as "team" and the inmate is present. Team meetings are intended to give staff and inmates the opportunity to discuss issues in an open format. This is the inmate’s opportunity for individual attention and he or she should be encouraged to ask questions and discuss concerns.
Classification is the initial team meeting whereby a careful review of the case and inmate’s history are discussed and relevant programs are recommended. The purpose of the meeting is to define clearly for the inmate: (1) sentence information, including financial obligations; (2) educational programs; (3) security/custody levels; (4) release plans; and (5) work assignments. These programs reflect the needs of the inmate and are stated in measurable terms. Generally, initial classification occurs within four weeks of an inmate’s arrival at his designated institution.
Subsequent team meetings are referred to as Program Reviews. These meetings are held at least once every six months (every three months for inmates with less than one year remaining to serve) and are conducted to monitor and evaluate the inmate’s progress in all program areas. Program participation is discussed in relation to the schedule developed at initial classification. New and/or revised goals are developed as necessary. A progress report is the principal document used by the Unit Team to evaluate the behaviour and activities of inmates. The progress report is a detailed, comprehensive account of an inmate’s case history, prepared by the Case Manager at prescribed intervals during the inmate’s confinement. Generally, the Case Manager composes the progress report with input from other unit staff, work detail supervisors, and education instructors. The progress report reflects the inmate’s past status, assesses his current status, and offers an indication of anticipated accomplishments. This could include the inmate’s continued participation in a program; and what he plans to do at the completion of the program, or if he plans to use what he has learned upon his release. Information is also provided on the inmate’s relationship with others (both staff and inmates), particularly with respect to attitude, punctuality, etc. A progress report is required, at a minimum, once every three years. At the ADX, the inmates are provided with a copy of the most current progress report. Upon request, an inmate may read and receive a copy of any progress report retained in the inmate’s central file.
An ADX inmate’s status is also reviewed under Institution Supplement FLM 5321.07(1), General Population and Step-Down Unit Operations. In addition, Mr. Aswat would have access to the Bureau’s Administrative Remedy Program, which is set forth in Program Statement 1330.16, Administrative Remedy Program, and, as with any inmate of the ADX, he would be able to seek review of any issue relating to their confinement before the United States District Courts. All of these procedures have been described in detail before and are not repeated here.”
29.  The Department further indicated that if designated to ADX Florence the applicant’s mental condition would be subject to regular review. Inmates designated to ADX Florence underwent a psychological intake evaluation upon arrival and could, at that time, be referred to the mental health chronic care clinic, which is an outpatient clinic with services provided by a psychiatrist. Such an inmate would be seen at least every six months by the psychiatrist, but could request to be seen more frequently. In addition, he or she could receive psychological services monthly, weekly or daily (inpatient) based upon their classification, and more frequently should a crisis situation arise.
30.  In Babar Ahmad v. the United Kingdom the Court found that if convicted the applicant would face a maximum penalty of thirty-five years’ imprisonment. None of the counts imposed a mandatory minimum sentence.